Last week, Ben Emmerson QC, the UN Special Rapporteur on Counter-Terrorism and Human Rights announced that he was establishing a panel which will investigate allegations that drone strikes and other forms of remote targeted killing have caused disproportionate civilian casualties. The panel is charged with making recommendations regarding the obligation of States to conduct independent and impartial investigations into such allegations with a view to securing accountability and reparations. Most of the attention regarding the use of drones for targeted killing has, been focused on the United’s States drone programme. This is understandable as the vast majority of drone operations for targeted killing have been carried out by the US. However, it is implicit in Ben Emmerson’s statement that he also intends to examine the use of drones by other countries, and particularly by Israel and by the United Kingdom (see report by the Guardian). This is because he mentions the use of drones in the “State of Palestine” and also refers to co-operation he has received from the government of the UK.

It is not well known that the UK also uses drones or Unmanned Aerial Vehicles (UAVs) for targeted killing and there has been little analysis of casualties arising from UK drone strikes. A recent report by the UK House of Commons Library provides an overview of the:

“The strengths and weaknesses of UAVs, the different types of UAVs in use by the UK Armed Forces in Afghanistan, rules of engagement and highlights some of the points raised by those concerned about their development and use.”

The report points out that:

“Reaper is the only armed remotely piloted aircraft system used by the UK. It is only deployed in Afghanistan. Defence Minister Andrew Robathan has confirmed the UK does not use armed UAVs against terrorist suspects outside Afghanistan. Defence Minister Philip Dunne has confirmed it has not been used in Pakistan or Somalia. The MOD has not made a decision as to whether to retain Reaper once combat operations end in Afghanistan. As of 1 November 2012, 297 Hellfire precision guided missiles and 52 laser guided bombs have been employed by Reaper since operations began in Afghanistan. Reaper deployed to Afghanistan in 2007 but only had the capability to deploy air-to-ground weapons since May 2008.” (p. 11)

Civilian Casualties from UK Drones

One of the criticisms of the US drone programme is the US claim that few or indeed no civilians are harmed by drone strikes. This is a claim that has been disputed by journalists and others (see for example, the Bureau of Investigative Journalism). The UK makes a similar claim in relation to its programme. According to the House of Commmons report:

“Then Defence Minister Nick Harvey said in June 2012 that he is aware of only one incident which in individuals not classified as insurgents were killed by a UK Reaper. This occurred on 25 March 2011 when a Reaper fired on two pick-up trucks. Two insurgents and four civilians were killed and two civilians were injured.” (p. 11)

With the US, questions have been raised as to its definition of who is a civilian. This is a question previously discussed by me here and by Kevin Jon Heller in a recent article and a recent post on Opinio Juris. Apparently, the US is only able to claim few civilian causualties by having a very narrow definition of who is a civilian or to put it the other way around, it is said that the US has a wide definition of who is not a civilian and thus a legitimate target. The UK government was recently asked in Parliament (in the House of Lords) for its own definition of who is a civilian.

“Lord Hylton asked the Government how it distinguishes civilians from insurgents:

What criteria they use to distinguish civilians from insurgents in Afghanistan when assessing deaths and injuries caused by United Kingdom forces; and whether the same criteria apply to casualties caused by drone aircraft.

The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Astor of Hever) [gave the following written answer]:

” . . . in all circumstances where a possible civilian casualty is reported, UK forces will investigate the circumstances. The presumption of that investigation will be that any casualty is a civilian unless it can be established that the individual was directly involved in immediate attempts or plans to threaten the lives of International Security Assistance Force personnel.” (p. 12 and also here)

I do not know if the definition was cleared by MOD lawyers, military lawyers or Foreign Office lawyers before it was offered, but it is close to being an accurate definition of who is legitimate target under international humanitarian law (IHL). IHL allows persons to be the object of an attack only when they are not civilians and are not taking a direct part in hostilities (DPH). [See Article 51(3) of Additional Protocol I (1977)] The statement by the minister appears to be an attempt to state the UK’s understanding of what it means to take a direct part in hostilities rather than a statement of who is a civilian. Being involved in an attack on ISAF personnel or in hostilities would not automatically deprive a person of civilian status, but would, if it amounted to direct participation in hostilities, deprive the person of legal immunity from attack.

It is interesting that the statement makes clear that an individual is only a legitimate target when they are “directly involved in immediate attempts or plans” to threaten lives of ISAF personnel. The requirement of immediacy is particular important as it is quite close to the position that the ICRC set out in its Interpretive Guidance on Direct Participation in Hostilities. The ICRC, rightly, distinguishes between acts which form part of the general war effort or are war sustaining, and acts which amount to direct participation in hostilities. According to the ICRC, the latter require that there must be a direct causal link between the act said to constitute direct participation and the requisite harm that is caused. The ICRC states that “the requirement of direct causation is satisfied if either the specific act in question, or a concrete and coordinated military operation of which that act forms an integral part, may reasonably be expected to directly – in one causal step – cause harm that reaches the required threshold.” (p. 58) . Although there has been much criticism of the ICRC’s interpretive guidance, my view is that this part of the document is sound (see Akande, Clearing the Fog of War? The ICRC’s Interpretive Guidance on Direct Participation in Hostilities (2010) 59 ICLQ 180 and also here). The text and structure of the relevant provisions of Additional Protocol I make clear that there is a distinction between supporting the war effort and direct participation in hostilities, and suggest a narrow definition of direct participation in hostilities. Remember that Art. 51(3) does not deprive the person of immunity from attack if the person has been involved in or contributed to the armed conflict. A person is only a legitimate target if they take part in hostilities. Moreover, they have to take a direct part in hostilities.

By requiring that persons must be directly involved in immediate attempts or plans to cause harm, the UK seems to be suggesting that those persons must themselves be attempting to cause harm through their acts or must be part of an operation that will itself result in harm to ISAF personnel. This is practice that seems to accord with the ICRC approach.

However, the UK statement is a bit narrower than the definition of direct participation in hostilities under AP I and customary international law in that it only covers those threatening harm to ISAF personnel. What about the suicide bomber threatening civilians or Afghan national army? The ICRC Interpretive Guidance states that acts which directly cause or are intended to cause harm not only to the military of the adversary but also to protected persons or objects would meet the threshold of harm required for direct participation in hostilities. That definition goes beyond the ICRC Commentary on AP I which had defined direct participation overly narrowly. That commentary stated that:

‘direct’ participation means acts of war which by their nature or purpose are likely to cause actual harm to the personnel and equipment of the enemy armed forces.

However, as the Israeli Supreme Court noted in the Targeted Killings Decision (2005) this definition was too narrow as it appears to exclude acts intended to cause damage to civilians and such acts should be regarded as hostile acts. The UK statement goes back to this narrow approach.

2 Responses

You write: “IHL allows persons to be the object of an attack only when they are not civilians and are not taking a direct part in hostilities (DPH).” I suggest the ‘and’ should be repalced by ‘or’. To take a typical international armed conflict, it is lawful to target, inter alia, (1) combatants (eg, enemy armed forces, organised) who need not be taking a DPH — status-based targeting; (2) civilians who are taking a DPH — conduct-based targeting.

I suspect the UK statement is more limited as the context is a non-international armed conflict and they chose for whatever reason not to address the issue of dissident armed forces and other organsied armed groups (both of which can be targeted based on status, not conduct).

In line with Ian’s comment (and perhaps merely a rephrasing of it) is the question of whether the UK would target Continuous Combat Functionaries (CCF’s). The DPH guidance created the CCF category to essentially allow the status-based targeting of civilians that have forfeited their civilian immunity because of the continuous role they play in the armed group of a non-state actor. My first impression was that the UK would not engage in status-based targeting of CCF’s, although a second indicates there is some leeway to do so. The standard allows for the targeting of someone “directly involved in immediate . . . plans to threaten” ISAF personnel. This would seem to allow targeting those involved in the planning process as well as those actually preparing for immediate attacks. It would be interesting to see how much emphasis MOD wanted to place on the planning aspect of this.

I fully agree with Dapo that strikes against those targeting civilians as well as ISAF forces would be legal under IHL.

Dear Dapo,
I think many of us would appreciate your rephrasing the sentence Mr Henderson pointed to. I guess that it precisely plays an important role in the point you’re making.
Best,
David

Dapo Akande

Dapo Akande is one of the editors of EJIL:Talk!. He is Professor of Public International Law at the University of Oxford and Yamani Fellow of St Peter's College, Oxford. He is Co-Director of the Oxford Institute for Ethics, Law & Armed Conflict, and also of the Oxford Martin Programme on Human Rights for Future Generations. Dapo is a member of the Editorial Boards of the European Journal of International Law and the American Journal of International Law.